Schimmel & Parks, APLC - Litigation
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Is it employer retaliation if the dismissal is due to an illness?

In many California workplaces, workers are concerned about their job if they become ill and miss work. The circumstances will dictate what an employer can do to an employee who misses work without approval. There are times when employer retaliation is a legitimate problem and rather than face the possibility of job loss or other sanctions, employees feel as if they have no alternative but to work despite an illness. If a worker is so ill that he or she takes time off work and is retaliated against, it is important to know if the situation warrants a legal filing.

Employers are not allowed to fire employees if they miss time due to illness in the following situations: if the employee is suffering from a disability and has the right to take time off as part of a reasonable accommodation; or if the employee has a "serious health condition" and they can take leave based on the California Family Rights Act or the Family Medical Leave Act.

For employees who have an illness that is categorized as a disability, there will generally be the right to take time off as part of a reasonable accommodation. If it is a condition that does not limit the person such as a cold or a minor injury, it will generally not be considered a disability. If, however, the person has a broken bone or a relatively significant illness such as pneumonia, this can be considered a disability if it inhibits a "major life activity."

If the employee is suffering from a serious health condition and they have the right to use CFRA, they might take time off without asking for it beforehand. If it is an emergency and was unforeseeable while giving the employer notice as soon as he or she can, the employer is not legally able to fire the employee, nor can CFRA be denied.

For workers who exercised their rights to take time off due to illness and were subjected to employer retaliation, it is important to understand how they are protected under the law. If they meet the criteria to have time off because of an illness and they face retaliation because of it, there could be the basis for a lawsuit. Calling a law firm that specializes in employment law can provide information and representation in a case and help with being compensated.

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